The original oral agreement between the plaintiff and the corporate defendant (Productions) provided that if plaintiff arranged a meeting between Brooks (Brooks), the producer of a motion picture, and Productions, and Brooks engaged Productions to provide production services in connection with the making of the motion picture, Productions would pay plaintiff 25% of the “markup”, the profit over and above the cost and expense of rendering production services after reimbursing such costs and expenses. The sole function of plaintiff was the introduction of Productions to Brooks, the classic role of a finder.
*238This constituted an oral agreement to pay a “finder’s fee” for a “business opportunity” within the purview of the Statute of Frauds (Freedman v Chemical Constr. Corp., 43 NY2d 260, 266-267), unenforceable by virtue of section 5-701 (subd a, par 10) of the General Obligations Law. As a contract to pay for services rendered as a finder or business broker in negotiating a business opportunity, it was unenforceable in the face of the Statute of Frauds pleaded in bar by Productions. Moreover, it was never performed. Although plaintiff introduced Productions to Brooks, it is undisputed that Brooks did not engage the services of Productions because Productions would have been unable to perform the services required by Brooks. However* Productions referred Brooks to EUE/Screen Gems, a division of Columbia Pictures.
Brooks subsequently entered into a contract with EUE for the required production services. Productions claims that Brooks agreed to pay EUE a markup of 35% ; that EUE agreed with Productions that in return for Productions’ referral of Brooks to EUE and Productions’ rendition of certain limited production services in connection with the making of the film, “the aforesaid markup as and when actually paid by Brooks to, and received by EUE would be divided”, 12%% to plaintiff and the remaining 87%% equally between EUE and Productions.
Plaintiff asserts that the original agreement between him and Productions was then modified to reduce his share of the markup to 12% %. Defendants agree with this position but claim that the 12% % was to be due and payable to plaintiff only after the markup was actually paid by Brooks to EUE and after EUE forwarded the appropriate share of the markup to Productions for both its own account and the account of plaintiff.
It is undisputed that the motion picture has been completed, but no part of the markup has been paid by Brooks to EUE and no part of the markup has been paid by EUE to Productions, either for its own account or for the account of plaintiff despite due demand.
It is plaintiff’s position that by admitting there was a modification of the original agreement, Productions has waived the defense of the Statute of Frauds. My brethren *239spell out a waiver from the concession that there was a modification, in Productions’ answer and in the “stipulation ADMITTING FACTS NOT IN DISPUTE AND LIMITING ISSUES IN dispute”. However, such waiver cannot be broader than its terms. The Statute of Frauds is a waivable defense and does not make the contract sued upon unenforceable unless the statute is pleaded. Paragraph “5” of the answer pleads the statute except to the extent of the terms of the modification admitted by the answer. Paragraph “2(f)” of the answer and paragraph “24” of the stipulation assert that the obligation to pay plaintiff was premised upon payment by Brooks to EUE and by EUE to Productions. It is undisputed that no payments have been made by EUE to Productions. Since the modification was premised upon such payment, there is no waiver. The fact that this is pointed out by defendant’s attorney rather than by an officer of defendant, is not dispositive. The attorney’s affidavit merely points to the language of the answer and the stipulation, and argues a conclusion from such language. The fact that plaintiff contends that the agreement was otherwise cannot be substituted for or added to the defendant’s waiver.
The majority concludes that the admissions demonstrate that plaintiff and Productions were cofinders and that the statute is not applicable, relying upon Dura v Walker, Hart & Co. (27 NY2d 346). However, in that case the court found (p 348) that there was an agreement between the plaintiff and representatives of defendant that defendant would “work as a finder on a participating basis”. There, plaintiff, in the presence of defendant’s officials, called a representative of Lehman Brothers who had originally enlisted plaintiff’s services to find a purchaser for a chemical corporation upon an oral promise of a finder’s fee. Plaintiff advised the Lehman Brothers’ representative that he “could work with defendant as my agent”. Thereafter a purchaser was found through defendant’s efforts. Defendant received from the purchaser a stipulated consideration for its services in negotiating the purchase. The complaint seeking a portion of the consideration was sustained against a motion to dismiss on the basis of the Statute of Frauds upon the ground that the parties agreed to work together and that by that agreement they became coventurers as finders.
*240We search the record in our case in vain to find any assertion by the plaintiff that any such agreement, to work together in obtaining the services of EUE for Brooks was made with the defendant. My brethren assert that there must have been such an arrangement because otherwise “there would simply be no reason other than unalloyed beneficence and a charitable sense for the corporate defendant to obtain a ‘slice of the pie’ for plaintiff. Businessmen simply do not act this way, as a general rule.” However, this view of the way businessmen act does not demonstrate there was an agreement in the absence of even an assertion that such an agreement existed.
There is simply nothing in this record to support the conclusion that plaintiff and Productions were cofinders. On this basis Special Term’s order dismissing, the complaint upon the ground of the Statute of Frauds would appear to be correct.
However, there is some intimation in plaintiff’s affidavit in opposition that plaintiff rendered services as a cinematographer and some production services, and that this was the subject of the modified agreement. If this is so, the statute is not applicable and the plaintiff may be entitled to recover for such services. Although the sparse complaint does not so allege, it is broad enough to allow proof that this was the agreement and that such services were rendered.
Accordingly, I concur in the result.
Kupferman, J. P., and Carro, J., concur with Lupiano, J.; Birns, J., concurs in a separate opinion by Fein, J.
Order and judgment, Supreme Court, New York County, entered on April 14, 1980 and April 17, 1980, respectively, modified, on the law, to the extent of reversing the grant of summary judgment dismissing the complaint to defendant Fred Cammann Productions, Inc. and denying the corporate defendant’s motion for summary judgment, and, as so modified, affirmed, without costs and without disbursements.